Thursday, February 16, 2012

Decency in Teaching?: Arizona's Proposed SB1467 Would Adopt FCC Standards for All Classrooms

The Arizona legislature is considering another law that would govern the content of public classrooms.  However, unlike the ethnic studies law, the proposed SB 1467 also reaches university education.

The bill explicitly incorporates "the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio" as prohibited speech by "a person who provides classroom instruction in a public school engages in speech or conduct."   The bill provides a three strikes policy with the third occasion requiring termination. 

The bill defines public school widely to include:

  • a public preschool program
  • a public elementary school
  • a public junior high school
  • a public middle school
  • a public high school
  • a public vocational education program
  • a public community college
  • a public university in this state

The United States Supreme Court is struggling yet again with issues of fleeting expletives and fleeting nudity under FCC standards, as the oral arguments in the reprise of  FCC v. Fox last month demonstrated.  The FCC standards for broadcasting (before 10pm) are increasingly constitutionally problematic in the television/radio context, but importing them into classrooms will strain the First Amendment.  The prospect of FCC standards in classrooms provokes a host of hypotheticals - here are just three:

First, there is the industrial arts teacher who hits her thumb with a hammer and utters an obscenity.  As Justice Roberts recognized in the oral arguments for FCC v. Fox last month, "the context matters. People understand that, including children. When they hear a bad word when someone hits their thumb with a hammer, they understand that's different than having an adult stand in normal conversations and use the words."   This seems to imply that an adult - - - even around small children - - - understandably swears when certain things occur.   Hammers, as well as technological gear, umbrellas, wet floors, basketballs, and all manner of other items, can cause teachers' utterances.

Second, there is the art history professor who shows slides of art works, including Da Vinci's Anatomy of a Male Nude, or who teaches a life drawing class.

Third, there is the constitutional law professor, teaching undergraduates or presumably teaching at the public Arizona law schools, who disscusses FCC v. Pacifica Foundation, especially the appendix to the Supreme Court's 1978 opinion which includes George Carlin's "filthy words" monologue in full.

With any luck, the Arizona legislature will consider the host of constitutional problems that SB 1574 raises.

[image Arizona Capitol building]

Current Affairs, Federalism, First Amendment, Fourteenth Amendment, Sexuality, Speech | Permalink

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Making certain words unlawful (other than the historical categories of fighting words, advocacy of unlawful action, obscenity, etc., each of which present their own problems of government control of our speech) is antithetical to freedom of speech. Old persons like myself can track the diminution of constitutional protection of speech by the Burger and Rehnquist courts, principally the latter. It is no longer justifiable (and wasn't at the time of the Pacifica decision) to lower the standard of review given to government regulation of the content of speech on broadcast media, based either on "scarcity" or "pervasive/intrusiveness," unless we are simply going to hand to government the power to totally control our speech. Whether or not it is polite to say "fuck" in conversation (or writing), it should not be illegal. It is no surprise that permitting government to regulate "indecent" speech, a term that is inherently ambiguous, leads to laws like the subject of your report. With rare, historically justified exceptions, content-based regulations of speech should be given strict scrutiny, but the USSC has worked hard to dilute this protection with new categories of mid-level-protected speech such as "secondary effects," "symbolic conduct," and the travesty of Colorado v. Hill.

Posted by: Jeffrey G. Purvis | Feb 18, 2012 9:28:07 AM

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